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Lucas Guttentag, Apr. 13, 2020
(Lucas Guttentag is the Professor of the Practice of Law, Stanford Law School, and Martin R. Flug Lecturer in Law, Yale Law School.)
"The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to land borders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
The 1944 Public Health Act included a provision, now codified at 42 U.S.C. 265, that authorizes the Surgeon General to “suspend” the “introduction of persons or goods” when a “communicable disease in a foreign country” poses “a serious danger of the introduction of such disease into the United States” and the danger is so increased by the introduction from the foreign country that “suspension … is required in the interest of public health.” The relevant section provides in full:
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
The 1944 provision largely reenacted a predecessor provision dating to 1893, but shifted the authority to “prohibit introduction” from the President to the Surgeon General and deleted specific references to cholera and yellow fever. The scant legislative history discusses the shift as part of the reordering and establishment of the Public Health Service. In 1966, the authority was shifted from the Surgeon General to what is now the Secretary of Health and Human Services (HHS), who later delegated authority to the Centers for Disease Control. Research has not located any cases of the executive branch ever addressing or invoking the authority under this statutory provision generally, let alone with respect to the power to bar introduction of persons.
Quarantine Laws Do Not Confer Immigration Authority
When first proposed in 1892, the provision would have focused on creating sanitary commissions with authority to forbid the entry of vessels that had embarked from ports suspected of infection with smallpox, cholera, yellow fever and other quarantinable diseases. That proposal evolved into a provision that would have authorized the President to “suspend immigration” as a supplement to the quarantine authority when the danger to public health was so increased “by immigration that a suspension of the same is demanded in the interest of public health.”
The reference to immigration was eliminated in response to concerns that “all travelers,” citizens included, could carry diseases and that immigrants should not be singled out or stigmatized. As Wisconsin Senator William Vilas said about the 1892 bill, “I think it ought not to be an authority which discriminates in the manner in which the word ‘immigration’ operates a discrimination.” In response, the final version adopted the current language authorizing suspension (in whole or in part) of the “introduction of persons or property” instead of singling out immigrants as part of an act to grant “additional quarantine powers.”
The law’s context and its application to all persons, not just noncitizens or “aliens,” supports understanding that its purpose was to enforce and supplement the quarantine authority by preventing new arrivals being released into the country, citizen and noncitizen alike. And the penalty provisions addressed those who transported persons and goods, not individual arriving passengers, thereby further indicating that the law was not intended to authorize immigration-based expulsions or removals. Nothing indicates that the law was intended to authorize creation of an alternative immigration enforcement system or implied ground of exclusion, much less to authorize deportation or expulsion.
Indeed, even if one were somehow to construe the statute as an immigration authority, the provision does not include a deportation power. Removing non-citizens from the United States on any basis is a qualitatively different governmental power and a different burden on individuals that Congress would need to specifically authorize.
That this provision is not an immigration power is all the more evident from an earlier separate law, enacted by the Immigration Act of 1891. It authorized the exclusion of noncitizens on the basis of health or communicable disease. That act added “persons suffering from a loathsome or a dangerous contagious disease” as ground of exclusion, and also required a medical inspection of all noncitizens arriving at ports of entry. That individualized ground today provides that any noncitizen who is determined “to have a communicable disease of public health significance” (emphasis added) is inadmissible.
The regulations under Section 362 and adjacent provisions (until the current emergency rule) confirm the statute’s role as preventing the introduction of goods and authorizing the quarantine of people (both citizens and noncitizens). The regulations never before – in over seventy-five years — sought to use the statute as a substitute or mechanism for regulating admission under the immigration laws or for authorizing a noncitizen’s deportation or return to their home country. Given the immigration regime that already exists, including specifically a ground for excluding noncitizens with dangerous or contagious diseases, and the public health law’s broad application to all persons, it cannot be that Section 362 confers an independent, unrestrained deportation power untethered to the statutory exclusion grounds and procedures that accompany regular deportations.
Superseding Statutes (Last in Time Rule)
Whatever authority Section 362 might arguably have conferred regarding noncitizens in 1944, it must now be reconciled with the subsequent enactment of the Refugee Act of 1980 and the Convention Against Torture. More specifically, any enforcement power the statute might have granted in the past cannot be contrary to the humanitarian protections that now indisputably govern the removal of noncitizens.
Statutory safeguards in the Immigration and Nationality Act (INA) establish the right to apply for asylum, impose a mandatory prohibition against removal to persecution, and enforce the Convention Against Torture (CAT).
1) Right to apply for asylum
The asylum system mandates in critical part that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ….), [and] irrespective of … status, may apply for asylum.” 8 U.S.C. § 1158 (emphasis added).
2) Mandatory prohibition on “refoulement”
The Refugee Act also codified the mandatory prohibition in Article 33 of the Convention Relating to the Status of Refugees, which provides that “[n]o Contracting State shall expel or return (‘refouler’)” a person “in any manner whatsoever” to a place “where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
3) Mandatory protection from torture
Finally, in 1994, the United States became a party to the Torture Convention and Congress passed implementing legislation, binding the government “not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681, 2681-821; see also 8 C.F.R. § 208.16(c) (implementing CAT).
The Novel Claim to Expulsion Authority
Until the new rule, the existing regulations addressed the introduction of people into the United States by setting forth criteria for medical inspection and quarantine, along with elaborate and detailed procedural protections governing the quarantine process. As the introduction to the new rule acknowledges, “[c]urrent regulations … only address suspension of the introduction of property and the procedures to quarantine or isolate persons … but they do not address the suspension of the introduction of persons into the United States.” 85 Fed. Reg. 16560. It goes on to explain that the rule would now enable “the CDC Director to suspend the introduction of persons into the United States.” Id. at 16563.
On March 20, HHS issued the emergency Interim Final Rule and for the first time under the statute singled out noncitizens, making the new power to bar “introduction” wholly inapplicable to U.S. citizens and legal permanent residents. The new rule redefines and vastly expands what constitutes the “introduction into the United States” of a disease or person. It broadly defines “introduction [of persons] into the United States” as being the “movement of a person from a foreign country” into the United States “so as to bring the person into contact with persons” or property in the United States “in a manner that … present[s] a risk of transmission … even if the communicable disease has already been introduced, transmitted or is spreading within the United States.”
There is no requirement that a barred person actually be infected or contagious, or that the individuals themselves actually pose a danger to public health. And under the rule no individualized determination is required. It authorizes suspension of “persons or class of persons” (emphasis added) based on a finding that they are “potential … vectors of the communicable disease” into the United States, again regardless of whether persons or property in the United Sates are already infected (71.40(b) (1)- (2)) (emphases added). In short, under the rule, all that is needed to render an entire category of noncitizens barred from “introduction” (and then subject to expulsion) is the existence of a communicable disease in a foreign country and a finding by the CDC that the danger of the disease is “increased by the introduction of persons from such country.”
Such a capacious and vague interpretation of permissible CDC action stretches too far the reading of when suspension is “required in the interest of public health” and fails to require consideration of alternative less intrusive or burdensome measures. In addition to exceeding the statute’s scope, a rule that confers such power on the CDC also arguably violates the Supreme Court’s ruling in Hampton v. Mow Sun Wong, which found a violation of due process in a discriminatory immigration regulation by a federal agency not charged with immigration enforcement.
Ominously, it is also not clear whether the CDC authority is limited to persons actually arriving in the United States. Those who have already entered and are traveling within the United States might also be covered. In the rule’s explanatory language, HHS explains that “introduction can encompass those who have physically crossed a border of the United States and are in process of moving into the interior” in a manner the CDC determines presents a risk of transmission. The rule authorizes CDC to “halt the travel” of such persons in order to “rapidly mov[e] them outside the United States” as part of “preventing their ‘introduction’” (FR16563). (See also analysis below about “domiciled” and non-“domiciled” noncitizens.)
The rule’s net effect is to convert Section 362 into an immigration regulation and removal measure that grants the CDC Director broad and vague authority to bar the “introduction” of classes of noncitizen persons without regard to actual infection or contagiousness and that seems to authorize roving orders of expulsion.
The CDC Order’s Targeting of Refugees and Children
Acting on his new regulatory authority, the CDC Director issued the current Order, innocently titled Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, to remain in place for 30 days (i.e., until April 20) or until the danger has ceased, subject to renewal and modification.
The Order is carefully crafted to apply only to immigrants entering the country without valid documents by land across the southern (or northern) border. The Order operates by placing a “temporary suspension” on “introduction” of persons “traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol station at or near the United States borders with Canada and Mexico” in order to “protect the public health.”
The stated justification for the Order is the challenge associated with congregate settings at land POEs and Border Patrol stations, specifically that “CBP screens and processes millions of aliens who seek to enter the United States legally each year at POEs, as well as apprehending, screening, and processing the hundreds of thousands of aliens who attempt to unlawfully enter the United States each year by crossing between POEs.”
What follows is a choreographed exercise in result-driven line-drawing that carves out all but the intended targets: two categories of congressionally protected individuals. The proffered rationale is applied not to all immigrants in congregate settings or crowded areas, but by process of elimination only to those noncitizens who enter by land without valid documents– and to every one of them regardless of setting or circumstance. They are labeled a unique danger to public health. They are the exclusive subject of the Order only because they are defined as “covered aliens.” That category is constructed by first encompassing everyone traveling by land from Mexico (and Canada) who would be “introduced into a congregate setting” at a port of entry or Border Patrol station, but then carving out those who are citizens, legal permanent residents, and anyone with valid travel documents or entering under the visa waiver program.
The CDC Order is like a bullseye drawn on the side of the barn around the arrow that has already been shot. The only travelers who remain subject to CDC expulsion are noncitizens arriving at or crossing the border without documentation. But that is precisely the category that is also and already subject to a summary removal process under the existing “expedited removal” statute. That category of noncitizens can already be summarily removed, unless they seek humanitarian refugee protection or are covered by the TVPRA. Hence, the Order is crafted to target the population of noncitizens seeking asylum and protection from persecution at the southern border and renders them subject to a summary CDC expulsion while denying them the opportunity to claim asylum or protection from persecution under existing law. (See also discussion below of DHS’s list of classes of noncitizens exempted from orders of border closure.)
A choreographed exercise in result-driven line-drawing that carves out all but the intended targets: two categories of congressionally protected individuals.
The rationale offered for singling out this population is not that they themselves actually pose a unique health risk or are more likely to be infected or contagious than other noncitizens (or citizens). Rather, it is that CBP’s processing and detention practices mean that these migrants are typically “held in the common areas of the facilities, in close proximity to one another, for hours or days, as they undergo immigration processing.” In other words, the CBP process for arrest, logging, detaining, and transporting undocumented migrants into “congregate settings” is what converts them into medical risks to themselves and to Border Patrol officers. And that risk is what justifies singling them out. The Border Patrol by its own practices makes migrants instantly expellable.
The Order also removes any doubt over whether it can be a tool for enforcing repatriation to a noncitizen’s home country without screening for asylum, non-refoulement withholding, or CAT protection. The Order is plainly not limited to turning someone back at a port of entry that might arguably leave them in (or return them to) Mexico (or Canada). Rather, it anticipates and authorizes sending non-Mexican nationals to their home countries and doing so “as rapidly as possible.” The Order states “the immediate suspension of the introduction of these aliens requires the movement of all such aliens to the country from which they entered the United States, or their country of origin, or another location as practicable, as rapidly as possible.” (Emphasis added). It advises that “DHS … will use repatriation flights” where necessary to quickly remove these noncitizens. In short, refoulement is the intended and foreseeable outcome of the policy.
The just-leaked CBP Implementation Plan titled COVID-19 CAPIO further confirms that the CBP expulsions occur without any refugee screening and that “covered aliens” can be expelled to their home countries. The CBP plan instructs Border Patrol agents to identify “alien[s] seeking to enter the United States, without proper travel documentation or otherwise subject to travel restrictions at or between a POE,” that they should be quickly processed in the field, and be immediately “expelled” by return to Mexico, Canada, or to their “country of citizenship.”
The CBP plan, like the rule, raises the question of whether CDC expulsions might also be enforced in the interior. On the one hand, the plan refers to “aliens seeking to enter the United States” and the CDC Order refers to those who would be “introduced into congregate settings … at or near” the border. This might be read as limiting CDC-based expulsions to only those who are stopped in the act of entering.
But the rule’s reference to persons “moving into the interior” and “halt[ing] the travel,” along with the CBP plan’s instructions, raise the prospect of broader application to anyone who fits within in the “covered alien” category. First, the plan explicitly exempts only “domiciled aliens” who are “encountered within the US.” That implies that other non-“domiciled” noncitizens, such as recent entrants traveling anywhere within the United States who are heading toward some destination, are subject to CDC expulsion orders. Second, the plan instructs Border Patrol agents to rely on their experience and judgment, including “information from third parties and deductive techniques,” to decide if they “believe” that it is “more likely than not” that a person is subject to the CDC Order. Such judgments would not seem to be necessary if only those actually stopped while entering were covered.
The CBP plan’s only reference to protection is a nod to claims under the Convention Against Torture, stating that if a noncitizen “make[s] an affirmative, spontaneous and reasonably believable claim” that they fear torture in the country they are being sent back to, the case should be sent to USCIS for an assessment. If the assessment is negative, the person is to be “expel[ed] to Mexico or Other.” Given the rapidity, the lack of information, the nature of the removal, and the experience with removals under the Migrant Protection Protocol scheme, it is hard to fathom that anyone will meet that standard or be able to invoke it.
Likewise, the CBP operational plan makes no mention of the TVPRA, which imposes special requirements for the processing of unaccompanied children arrested by DHS. Yet, the Order plainly anticipates expelling them as it expressly states that “unaccompanied juvenile[s]” are those “under the age of 18 and NOT accompanied by a relative” (emphasis original) and are “amenable to immediate expulsion.”
Other COVID-19-Based Travel Restrictions Refute the Purported Rationale
The other restrictions on travel to the United States adopted in response to COVID-19 show that the CDC expulsion order is not a piece of some comprehensive or coherent public-health based border policy. A complex web of Trump administration proclamations, executive orders, restrictions, and bans in response to the COVID-19 pandemic leave substantial border travel intact, much of which poses more of a threat of virus transmission than asylum seekers who are processed and detained, which means they can easily be screened and quarantined.
In particular, two DHS orders governing travel through land ports of entry from Canada and Mexico suspend only “non-essential travel” and only through the land ports of entry (including by ferry and rail) but not by air. They bar tourist travel by land but do not apply to tourists traveling by plane or ship. Moreover the DHS orders specify that they permit all “essential travel” by land border crossers, which expressly include U.S. citizens, returning LPRs, as well as travelers coming to attend educational institutions, to work in the United States (e.g. farming or agriculture industry), for lawful cross-border trade (e.g. trucking); for government and diplomatic travel, for military and armed forces members (including spouses and children), and for emergency response, public health, and medical purposes. The breadth of allowable travel is confirmed by the directive’s assertion that it should not interrupt trade and supply chains between the two countries.
The directives also provide discretionary authority for the CBP Commissioner to permit the processing on non-essential travel for humanitarian or national interest reasons. No information is available on how or whether that authority has been exercised. (Journalists and members of Congress should ask.)
Other travel restrictions also allow significant exceptions. Proclamations governing China (Proclamation 9984,effective Feb. 2), Iran (Proclamation 9992, issued Feb. 29), the European Schengen zone (Proclamation 9993, issued March 11), and the United Kingdom and Ireland (Proclamation 9996, issued March 14), impose restrictions on noncitizens traveling from those regions (whether or not they are nationals of the covered countries). But the exceptions include LPRs and their relatives, U.S. government invitees related to containment or mitigation of the virus, diplomats, and any others deemed in the national interest or not to pose a risk by the CDC. Notably all the proclamations also state that “nothing in this proclamation shall be construed to affect any individual’s eligibility” for asylum, withholding of removal, or protection under the Convention Against Torture.
In short, the border remains open to many travelers while undocumented asylum seekers are categorized as a unique threat that can only be addressed by negating essential statutory protections.
Legal Barriers to the CDC Expulsion Power
The CDC Order offers no legal basis for CDC-based expulsions without any asylum or non-refoulement safeguards. The only apparent rationale is either that an undefined public health power can override the legal mandates guaranteeing humanitarian protections or, relatedly, that CBP’s assertion that Border Patrol officers “are not operating” under their immigration authority by engaging in “expulsion” allows disregard of statutory immigration law mandates.
It bears repeating that the existing immigration regime already provides a rapid process for evaluation of refugee claims and summary returns of noncitizens who arrive at ports of entry or cross the border without valid documents. Since 1996, those noncitizens are subject to “expedited removal” that provides for summary return without a hearing, and only those who present a claim for protection require longer processing and thereby become subject to lengthy detention. (Ironically, that processing time could provide for quarantining and screening if necessary to detect those who are actually infected or contagious.)
The CDC’s stated reasons must be scrutinized against the backdrop of the administration’s ceaseless efforts to deter, deny, and deport asylum applicants at the southern border, to impose restrictions and barriers that deprive bona fide refugees of protection, and to treat any arrivals at our border as a “crisis” that justifies harsh and legally dubious emergency measures. Many of those efforts have been rejected by the courts as exceeding the executive’s statutory authority.
Most significantly, in East Bay Sanctuary v. Trump, the Ninth Circuit enjoined (and the Supreme Court declined to stay) a Trump administration rule that would have categorically denied asylum eligibility to any noncitizen who crossed the border without authorization instead of coming to a port of entry. The court held the policy flatly inconsistent with the asylum statute’s guarantee that “any alien physically present … whether or not at a port of entry” and “irrespective of … status” may seek asylum. The court castigated the policy as an “attempted … end-run around Congress” by the Executive.
The CDC Order now tries to accomplish the same end-run — and more — under the guise of public health authority. The Order categorically closes not only asylum, but also precludes non-refoulement protection, and does so for all noncitizens who arrive without valid documents, not just those who cross the border without authorization. In other words, a less sweeping policy was held impermissible under the INA, and the administration has now adopted an even more categorical and encompassing prohibition under the purported authority of the Public Health Act. The violation of the Refugee Act is just as plain as in East Bay Sanctuary and even more absolute. The CDC Order tries to circumvent the East Bay ruling through the artifice of a public health rationale and the stratagem of invoking novel power under a law that’s not made for this purpose.
What’s more, the government seeks to justify the CDC Order by raising the same type of logistical problems as it attempted for the rule invalidated in East Bay Sanctuary. In that case the government argued that the influx of immigrants “arriving at once through the southern border would add tremendous strain to an already taxed system, especially if they avoid orderly processing by unlawfully crossing the southern border.” Here the CDC Order likewise relies on the burdens and risks imposed by the number of migrants arriving without valid documents and the consequence of processing them in “congregate settings” that gives rise to the danger of contagion.
Nor should the genuine pandemic crisis we face be the basis for imposing an unjustified categorical prohibition on the withholding of removal, non-refoulement protection. Both asylum and non-refoulement claims must be decided on their individual merit, and cannot be denied to a group whose only shared characteristic is their unlawful immigration status. The Office of the UN High Commissioner for Refugees recently stressed that COVID-19-related restrictions could impose screening and quarantining but not blanket measures: “Denial of access to territory without safeguards and to protect against refoulement cannot be justified on the grounds of any health risk.” Health screening “may not result in denying [persons seeking protection] an effective opportunity to seek asylum or result in refoulement.”
But even if individualized screening could ever be abandoned under some unavoidable or justifiable circumstances, that is not the case here. The CDC Order is not based on an imminent or actual threat of disease or contagion but on CBP’s assertion of logistical and operational challenges from processing “covered aliens” in congregate settings. Accepting that the risk is real, then DHS must adopt other means within its power, including parole, release from detention, field processing, and other measures to alleviate the crowding and the danger of contagion.
The government’s COVID-19 claim also does not fit within any of the permissible grounds for denying withholding/non-refoulement under domestic or international law. Some might argue that the proviso allowing denial when “the alien is a danger to the security of the United States” could be invoked. But at a minimum that exception requires an individualized assessment based on individual characteristics that pose a threat to the country. Here there is no claim of infection, contagion, or actual threat. The entire class of “covered aliens” that are barred shares no characteristic at all, except their immigration status, which cannot be a basis for denial. The risk is not due to anything specific or extraordinary about them. The risk arises from the process of detaining and screening them under CBP’s chosen standard procedures.
If the government were truly closing the border and denying all entry as an absolute, essential and unavoidable measure to protect public health, the questions here might be different. But that is not what is happening and the actual border policies and practices belie any such claim. As already shown, the singular effect of the CDC Order is to categorically exclude those with asylum and withholding claims from pursuing protection. That is not permissible. The processing must be adjusted to reduce the risk while complying with the refugee protection mandates. The enormous logistical and health challenges confronting every sector of society in the current crisis cannot be the basis for overriding fundamental, mandatory guarantees. Testing, screening, quarantining, and other steps are defensible. Expulsion without deciding claims of persecution is not. As a recent UNHCR Handbook for Parliamentarians makes clear, “[r]efoulement must be the last possible way to eliminate or alleviate the danger and it must be proportionate, in the sense that the danger to the country or to its community must outweigh the risk to the refugee upon refoulement.”
The fact that the return is labeled a public health “expulsion” instead of an immigration return or removal cannot matter either. The United States cannot “expel or return” a refugee “in any manner whatsoever.” A public health “expulsion” is no less a return because of the label under which it is executed. In Sale v. Haitian Centers Council, the Court rejected extraterritorial application of the non-refoulement prohibition but reaffirmed that “expulsion” from the territory is covered by these humanitarian protections. 509 U.S. 155 (1993). The Court observed that “[t]here is no dispute that ’expel‘ has the same meaning as ‘deport’; it refers to the deportation or expulsion of an alien who is already present in the host country.” Id. at 180. And unlike in Sale, where the extraterritorial returns were effectuated by the Coast Guard operating outside the United States, here there is no question that the Border Patrol and CBP are executing their coercive authority to expel noncitizens from inside the United States.
The CDC Order’s application to children also disregards the mandatory protections of the TVPRA. That law establishes obligations for government treatment of unaccompanied immigrant children, referred statutorily to as “unaccompanied alien children” or UACs, who are defined as children lacking lawful immigrant status, under 18, and lacking a parent or guardian in the U.S. or available to provide care and physical custody. Unaccompanied children from Canada and Mexico are entitled to procedural and humanitarian protections, including a determination of whether they fear return or are at risk of being subject to trafficking.
In particular, the TVPRA requires DHS to make “a determination, on a case-by-case basis,” within 48 hours of apprehension that an unaccompanied minor who is a national or habitual resident of a contiguous country (1) “has not been or is not at risk of being subject to trafficking,” (2) “does not have a fear of returning to [their] country of nationality,” and (3) “is able to make an independent decision to withdraw [their] application for admission to the United States.” Children apprehended at the border or a POE but not from a contiguous country are to be placed in the “care and custody” of Health and Human Services and must be transferred “not later than 72 hours after determining that such child is an unaccompanied alien child.” None of these mandates or requirements is addressed or respected in the CDC expulsion process.
Due Process and Plenary Immigration Power
The CDC Order summary expulsion authority also raises obvious procedural Due Process issues. The Order provides no procedure at all, authorizes expulsion without a hearing, denies access to the statutory asylum screening and protection, and may even be applicable to those traveling far from the border.
The CDC’s reliance on the public health power to expel noncitizens also begs the question of the constitutional basis for deploying that authority to enforce deportations. The source and scope of the federal immigration authority has been debated and contested by the courts and scholars for generations. The government now appears to be invoking an entirely different basis for expelling noncitizens. If such power exists, it must be grounded in the Constitution and its scope and limitations must be fully articulated. The implications of allowing CDC orders to override statutory immigration protections are hard to overstate. If permitted, the entire INA could be discarded and health authorities could adopt their own removal mechanisms without any respect for the substance and procedures written into the immigration statutes.
Finally, if, as the government asserts, the CDC-based expulsion authority is not based on the immigration statute at all, then none of the immigration act’s restrictions on judicial review and challenging expulsions should apply either. Judicial review of removal orders is governed by a baroque statutory scheme that seeks to impose special restrictions governing removal under the expedited removal and other removal regimes. None of those restrictions should apply if the CDC expulsion is, as CBP states, not an exercise of its immigration authority.
In short, the government cannot have it both ways. If CDC-based expulsions are based on public health powers, the administration must justify its actions under all the constitutional norms and principles that apply in the public health setting. If on the other hand, the government seeks deference for exercising its federal immigration power, then the expulsions must comply with the protections and procedures of that legal system.
The COVID border ban attempts to erect a shadow immigration system devoid of constitutional protections that erases fundamental statutory safeguards implementing refugee protection obligations. The CDC tries to do so by creating a regime that bars “introduction” instead of denying admission, that “expels” and “moves” instead of deporting and removing, that invokes public health dangers arising from CBP’s own logistical choices, and that returns refugees to persecution on the ground that it is only “suspending” their introduction. This regime cannot be reconciled with our history, our laws, or the Constitution."
This essay benefitted greatly from suggestions by Gerald Neuman, Harold Hongju Koh, David Martin, and Ryan Goodman. I am grateful for comments from Adrienne Harrold and Morgan Russell and for the exceptional research assistance of Derrick Rice, Veronica Guerrero, and Megan Yan.